Procedure for internal reviews of homelessness decisions

The local authority only has to carry out an internal review if the applicant asks for one.

Although there is no requirement to do so, an applicant should put a request for a review in writing so that there is a clear record of it.

It is advisable to be specific when drafting a review request. In one case, it was held that an email sent to the council’s designated email address reiterating the reasons why the homeless applicant had refused an offer of accommodation did not constitute a request for a review of a homelessness decision. While it was not necessary for the email to mention the word ‘review’, the local authority was within its rights not to regard it as a review request based on its content.[1]

When the authority (or authorities, if there is a local connection issue) receives the review request, it must notify the applicant:[2]

• that they or someone acting on their behalf, may make written representations to the authority in connection with the review and of any time limits that may apply 

• of the procedure to be followed in connection with the review, if it has not already done so.

It is sufficient to notify the applicant via their solicitors.[3]

The purpose of the notification letter from the local authority is to allow the applicant to state their grounds if they wish, and to draw out any new information which the applicant may have.[4] The applicant does not have to provide grounds for challenging the authority's decision.

The review may be carried out by the authority itself, or the authority may contract out its review function to someone acting as an agent on its behalf (in the latter case, the contract must not exceed ten years and must contain a condition that it can be revoked at any time).[5] The Court of Appeal has confirmed that it is lawful for a local authority to contract out homelessness reviews to an external person.[6] The terms of the contract should contain information about any conditions attached to carrying out review functions.

Where the review is to be carried out by an officer of the authority, s/he must be someone who was not involved in the original decision and who is senior to the officer(s) who made the original decision.[7] However, the maker of the original decision is not prevented from assisting the reviewer with routine matters in the conduct of the review.[8] The seniority provision does not apply if a committee of councillors had taken the original decision.

Sometimes there will be more than one review and it is not unlawful for a subsequent review to be carried out by the same officer who carried out the first review. In a case involving a second review of a suitability decision, it was held that the circumstances at the second review could not have been the same as for the original review, as something would have triggered the need for a second review. Therefore the officer was not reviewing his own earlier decision but was starting afresh.[9] A decision on whether to provide interim accommodation pending review can be made by the officer who made the original decision.[10]

The internal review procedure, when it is carried out by a local authority officer (as it normally is), does not breach article 6 of the European Convention on Human Rights (right to a fair trial).[11]

Unless a longer period of time has been agreed with the applicant, the authority (or authorities where the decision concerns a local connection referral) must notify their review decision within:[12]

• three weeks from the review request, or from the day the applicant's representations in response to a 'minded to' letter are received, if the original decision concerned:

  • reasonable steps to relieve homelessness

  • reasonable steps to prevent homelessness

  • notice to bring the prevention duty to an end

  • notice to bring the prevention duty to an end due to deliberate and unreasonable refusal to co-operate

• eight weeks from the review request if the original decision concerned:

  • eligibility for assistance

  • notice as to what duty is owed to the applicant

  • notice to bring the relief duty to an end

  • referral to another authority where the main housing duty is owed

  • outcome of the decision on whether the conditions for referral are met

  • outcome of the decision as to which authority holds the case between the original and the receiving authority

  • suitability of accommodation

  • suitability of accommodation private rented sector

  • notice to bring the relief duty to an end due to deliberate and unreasonable refusal to co-operate.

• ten weeks from the review request if the original decision concerned whether the conditions for referral are met and was made jointly by the concerned authorities

• twelve weeks from the review request if the original decision was made by an appointed arbitrator  and concerned a local connection referral.

If there is no notification of a decision within the relevant deadline, the applicant can either:

• agree in writing an extension of time with the authority - a good option provided that the client is accommodated pending review

• appeal to the county court on a point of law [13]

• apply for judicial review if the authority's original decision was correct on the facts as known to it at the time, but where fresh material has been put to the authority but has not been considered because the authority has failed to carry out the review.

Putting together comprehensive representations can take time, especially if it is necessary to obtain the housing file and if expert evidence is needed. In certain circumstances, it may be necessary for the authority to make further inquiries with the applicant about the information s/he has provided. The Homelessness Code of Guidance suggests that authorities should be flexible about allowing further exchanges of information, having regard to the prescribed time limit, and may wish to approach the applicant to agree to an extension of the time limit.[14] An extension may also be necessary if there is to be an oral hearing.

More specifically, the authority must notify the applicant that s/he must submit any written representations in connection with the review within two weeks of requesting the review where the review relates to:[15]

• the reasonable steps in the personalised housing plan (during the prevention or relief duty),or

• a notice bringing the prevention duty to an end.

The regulations state that if, on reviewing its decision, the reviewer considers that there is a deficiency or irregularity in its original decision or the way in which it was made, but still wishes to make an adverse finding, s/he must notify the applicant that:[16]

• they are minded to make an adverse decision and the reasons why, and

• the applicant (or someone acting for them) is entitled to an oral hearing, or to present their case in writing, or both orally and in writing.

The reviewing officer does not have the discretion to decide whether or not a 'minded to' letter is necessary or of material benefit to the applicant.[17] Where an applicant elects for an oral hearing, they have the right to require that the local authority holds a face-to-face hearing (as opposed to a telephone conference).[18] However, as long as the 'minded to' notification refers to the right to make oral representations, there is no need for it to offer specifically to the possibility of a face to face meeting.[19]

What may constitute a deficiency

The Code of Guidance suggests that any of the following might constitute a deficiency or irregularity:[20]

• failure to take into account relevant considerations and to ignore irrelevant ones

• failure to base the decision on the facts

• bad faith or dishonesty

• mistakes in law

• decisions that run contrary to the policy of the legislation

• irrationality or unreasonableness

• procedural unfairness, eg where the applicant has not been given the opportunity to comment on matters relevant to the decision.

The Court of Appeal held that a deficiency or irregularity may arise not only when the reviewing officer has found some significant legal or procedural error in the decision, but whenever s/he considered that an important aspect of the case was either not addressed or not adequately addressed.[21]

Examples of when minded-to process is triggered

The minded-to process will be triggered where, for example, the basis for finding that the Council did not owe the applicant a duty to accommodate was different between the original decision (eg not homeless) and the review decision (eg homeless but not in priority need), and where events that only occurred after the original decision, such as domestic violence in the area where the applicant would otherwise have a local connection, would have affected that decision.[22]

In one case, it was held that a homeless applicant was entitled to the benefit of the 'minded to' process where she may have misunderstood that refusing an offer of permanent accommodation - made under the council's one-offer policy - meant that the authority would discharge its duty to her. The 'minded to' process offers a procedural safeguard; the possibility that the applicant had been genuinely confused, to the extent that her refusal of the offer was not an informed decision and thus rendering the original decision deficient, was sufficient to engage the process, even though it only came to light after the original decision had been made.[23]

Where the minded-to process is not triggered

Not all differences between the original and review decisions will indicate an irregularity or deficiency, for example where the original decision referred to an applicant being an unlawful sub-tenant and the review decision referred to her being a bare licensee, as in the circumstances the accommodation did not constitute settled accommodation.[24]

In addition, where a deficiency does not affect the applicant adversely the obligation to send a minded-to letter is not triggered.[25]

In the course of the review, material may come to light that is adverse to the applicant. Normally, that information should be put to the applicant so that s/he can comment on it.[26] However, in one case, where there was a dispute over priority need and a local authority merely referred the material on which the applicant relied to its independent medical adviser for his comments, the final report of the medical officer did not need to be put to the applicant.[27]

Furthermore, where a matter has already been discussed with, or put to, an applicant and they have not sought to challenge it, there will be no need for a minded-to letter and an oral hearing.[28]

The reviewer must consider any representations made in connection with the review request.

Relevant date

The question of whether the facts to be taken into account are those at the time of the original decision or as they stand at the time of the review will depend on what decision is being reviewed and the requirements of fairness.[29]In relation to local connection, reviews must consider the facts of the case as they stand at the date of the review as time spent in temporary accommodation, including any period of residence after the original decision, is not to be disregarded when considering local connection.[30]

The Court of Appeal has held in certain cases that it would not be right for the authority to look only at the facts as at the date of the review decision but should be looking at the lawfulness of its original decision. In Robinson the Council had delayed taking its original decision on whether the applicant was in priority need until after her 18th birthday. In Omar the applicant's premature baby had required a check up at a local hospital at the time of the original decision and it was in the light of this fact that a review of the suitability of accommodation offered should have been conducted.[31]

In contrast in Saharsid the Court held that where the applicant's child turned five (a critical age for determining the size of property to be offered until the authority's allocation scheme), three days after the original decision, it was the facts at the time of the review that were to be taken into account in determining suitability of accommodation.[32] Note that a local authority can consider matters that were not originally part of the decision.[33]

Recalculating income and expenditure

The local authority can carry out recalculations of income and expenditure as part of a review, for example if the amounts claimed are unrealistic or inconsistent with documentation provided. These recalculations must be evidence based and have regard to points raised by the applicant. Providing the review officer has due regard to the guidance and based their conclusion on the material available, there will not be grounds for the county court to interfere with the decision on appeal. [34]

Outcome of the review decision

The review can either confirm the original decision or make a different decision. If different, the review can make an adverse decision on different grounds to that of the original decision. The review decision can also be less favourable to the applicant than the original decision.[35]

Public sector equality duty

The public sector equality duty (PSED) applies to the homelessness review process. PSED requires local authorities to, among other things, have regard to the person’s protected characteristics, including a disability.  PSED is not a stand-alone duty but applies to the way in which public authorities exercise their functions, including making enquiries into vulnerability under the homelessness legislation.[36]

The Court of Appeal held that:

• where a person's disability could be relevant, a local authority carrying out a review shall have 'due regard' to the need to take steps to take account of disabled persons' disabilities[37]

• where the reviewing officer had assessed the applicant’s health issues in a way that showed compliance with PSED, there was no requirement to make separate findings about disability for the purposes of PSED[38]

• unless in priority need for another reason, a person who is disabled within the meaning of the Equality Act 2010, will be in priority need for accommodation only if they are vulnerable as a result of their disability[39]

• where an intentionality decision was upheld on review, it was quashed on appeal because the reviewing officer did not make adequate inquiries as to the nature of the applicant's disabilities[40]

The notification requirements of a review decision depend on whether the decision was adverse to the applicant or was a positive one.

Adverse decision

If the review decision is an adverse one, the authority must inform the applicant of:

• its reasons for that decision[41]

• their right to appeal to the county court on a point of law[42]

• the time limits for making an appeal.[43]

If any of the above points are not met, the proper notification following the review is deemed not to have been given, and the time limit for appealing will not begin to run until proper notification has been given.[44]

There may be borderline cases in which some reasons are given but they seem inadequate. In one case, where a reviewing officer upholding an 'intentionally homeless' decision failed to explain why she agreed with the original decision or why the applicant's justification for her behaviour was rejected, the decision was quashed.[45]

In borderline cases, if the review decision letter is so deficient that the appeal process could not be conducted fairly, a letter should be sent seeking further or better reasons. If a satisfactory response is not given then judicial review may be appropriate.[46] Specialist advice should be sought, and it may be sensible to lodge an appeal request to protect the client's position pending the outcome of judicial review proceedings.

Where a review has been carried out jointly by two authorities following a local connection referral, either authority may notify the applicant of the decision.[47]

Positive decision

If the applicant's review is successful, the applicant must be notified but there is no obligation on the authority to give the reasons for its decision.[48] An applicant may be advised to ask the authority for its reasons, for example where they requested a review of the suitability of a property on more than one ground, it may help them to know the reasons why the review succeeded, especially if they are considering requesting a review of a subsequent offer.

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.